Citation Nr: 9920878
Decision Date: 07/28/99 Archive Date: 08/03/99
DOCKET NO. 89-26 791 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Medical and Regional Office
Center in Wichita, Kansas
THE ISSUES
1. Entitlement to a compensable rating for kidney stones.
2. Entitlement to service connection for residuals of a
right hand injury.
3. Entitlement to service connection for headache
disability.
4. Entitlement to service connection for hearing loss.
5. Entitlement to service connection for residuals of a
ruptured penile blood vessel, to include sexual dysfunction.
6. Entitlement to service connection for disability
manifested by joint pain.
7. Entitlement to service connection for disability
manifested by muscle spasms.
8. Entitlement to service connection for residuals of the
flu.
9. Entitlement to service connection for eye disability.
10. Entitlement to service connection for throat disability.
11. Entitlement to service connection for cardiovascular
disability, to include hypertension.
12. Entitlement to service connection for varicose vein
disability.
13. Entitlement to service connection for prostate
disability.
14. Entitlement to service connection for psychiatric
disability.
15. Entitlement to service connection for diabetes.
16. Entitlement to service connection for bladder
disability.
17. Entitlement to service connection for dental disability.
18. Entitlement to a total rating based on unemployability
due to service-connected disabilities.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Thomas H. O'Shay, Associate Counsel
INTRODUCTION
The veteran had active military service from October 1957 to
May 1962. He also had subsequent service in the National
Guard.
This matter comes before the Board of Veterans' Appeals
(Board) from rating decisions by the Department of Veterans
Affairs (VA) Medical and Regional Office Center (MROC) in
Wichita, Kansas. This case was remanded by the Board in May
1990, September 1992, April 1994 and June 1995. It was
returned to the Board in August 1997.
The Board initially notes that the veteran, in a November
1990 statement, raised the issues of entitlement to service
connection for a seizure disorder and entitlement to benefits
pursuant to 38 U.S.C.A. § 1151 for aggravation of his
headache disability resulting from treatment at a VA medical
center (VAMC) in 1989. In a June 1991 statement the veteran
raised the issues of entitlement to service connection on a
secondary basis for psychiatric disability, disability
manifested by joint pain, disability manifested by muscle
spasms, cardiovascular disability and hypertension, and in
August 1991 raised the issue of entitlement to service
connection for nose disability. In June 1992 the veteran
raised the issue of entitlement to service connection on a
secondary basis for diabetes and in December 1994 raised the
issue of entitlement to service connection on a secondary
basis for headaches. In a May 1997 statement the veteran
raised the issues of entitlement to service connection for
cervical and thoracic spine disabilities; service connection
on a secondary basis for stroke; and entitlement to benefits
pursuant to 38 U.S.C.A. § 1151 for right leg disability
resulting from treatment at a VAMC in March 1994. The record
also indicates that the veteran has raised the issue of
entitlement to an earlier effective date for service
connection for kidney stones. These matters are therefore
referred to the MROC for appropriate action.
The Board also notes that a private medical record for August
1993 documents the veteran's contention that he developed
ringing in his ears since participation in a bombing raid
over Japan in 1958; the examiner diagnosed the veteran with
tinnitus. The issue of entitlement to service connection for
tinnitus is therefore referred to the MROC for appropriate
action.
The Board lastly notes that the Board's June 1995 remand
requested that the MROC adjudicate the veteran's raised
claims of entitlement to service connection on a secondary
basis for bladder and prostate disabilities. As there is no
indication that the MROC has accomplished this action, this
matter is referred to the MROC for appropriate action.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained.
2. The veteran experiences occasional attacks of renal
colic, without infection or the need for catheter drainage;
there is no impairment of renal function; nor does he require
diet or drug therapy or invasive or noninvasive procedures
more than two times a year for his kidney stones.
3. The veteran has a scar of his right index finger due to
an injury sustained during a period of inactive duty
training.
4. The veteran's headache disability did not originate or
increase in severity in service, and it is not etiologically
related to service.
5. The claims for service connection for hearing loss,
residuals of a ruptured penile blood vessel, to include
sexual dysfunction, disability manifested by joint pain,
disability manifested by muscle spasms, residuals of the flu,
eye disability, throat disability, cardiovascular disability,
to include hypertension, varicose vein disability, prostate
disability, psychiatric disability, diabetes, bladder
disability and dental disability are not plausible.
6. The veteran's only service-connected disabilities are
kidney stones and a scar of the right index finger; the
veteran's right index finger scar is less than 40 percent
disabling.
7. The veteran is 60 years of age, has a high school
education, and has extensive work experience as an accounting
clerk.
8. The veteran's service-connected disabilities do not
preclude him from securing or following a substantially
gainful occupation consistent with his education and work
experience.
CONCLUSIONS OF LAW
1. The criteria for a 10 percent rating for kidney stones
have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991);
38 C.F.R. § 4.115a, Diagnostic Codes 7508, 7509 (1994);
38 C.F.R. §§ 4.7, 4.104, Diagnostic Code 7101, 4.115a,
4.115b, Diagnostic Codes 7508, 7509 (1998); Karnas v.
Derwinski, 1 Vet. App. 308, 312-13 (1991).
2. A scar of the right index finger was incurred during a
period of inactive duty training. 38 U.S.C.A. §§ 101(24),
106, 5107(a) (West 1991); 38 C.F.R. §§ 3.6, 3.303 (1998).
3. The veteran's headache disability was not incurred in or
aggravated by service. 38 U.S.C.A. §§ 101(24), 106, 1110,
1131, 5107(a) (West 1991); 38 C.F.R. §§ 3.6, 3.303 (1998).
4. The claims for service connection for hearing loss,
residuals of a ruptured penile blood vessel, to include
sexual dysfunction, disability manifested by joint pain,
disability manifested by muscle spasms, residuals of the flu,
eye disability, throat disability, cardiovascular disability,
to include hypertension, varicose vein disability, prostate
disability, psychiatric disability, diabetes, bladder
disability and dental disability are not well grounded.
38 U.S.C.A. § 5107(a) (West 1991).
5. The criteria for a total rating based on unemployability
due to service-connected disabilities have not been met. 38
U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.340,
3.341, 4.16 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board initially notes that while service medical records
for the veteran's National Guard service are on file, service
medical records for his active period of service are not of
record. The record reflects that the MROC made several
attempts to obtain the veteran's service medical records
through the National Personnel Records Center (NPRC), to no
avail. Pursuant to the Board's May 1990 remand the MROC
again contacted the NPRC and the veteran's National Guard
unit to obtain any additional service medical records. A
negative response from the veteran's National Guard unit was
received in May 1990 and NPRC responded in June 1990 and May
1991 that no further medical records from the veteran's
service department were available because any such records
would have likely been destroyed in a fire in 1973; the NPRC
indicated that no Surgeon General's Office extracts for the
veteran were found. The record reflects that the veteran has
also attempted to obtain records from NPRC and other
facilities with similar results. The Board notes that the
veteran, in August 1991, suggested that NPRC could not find
his records because it used the wrong middle initial for the
veteran. The record reflects, however, that NPRC did in fact
perform its searches using the correct name, and in any
event, the correct service number, for the veteran.
In its June 1995 remand the Board directed the MROC to
request that the veteran provide detailed information
concerning treatment in service for his claimed disabilities
and the units to which he was assigned, and to then contact
the NPRC and other records repositories which might hold the
documents. The veteran responded by listing only the Fort
Riley, Kansas, medical facility. In December 1995 the Fort
Riley facility responded that the veteran's records had been
retired to the NPRC, and in March 1996 the NPRC again
responded in the negative. The Board is unaware of any
additional source for the veteran's active duty service
medical records. Under the circumstances, in light of the
extensive efforts by the MROC to obtain the veteran's service
medical records through NPRC and his National Guard unit, and
since it is obvious from numerous statements on file that the
veteran would prefer a decision on his claims at this time,
the Board will accordingly proceed to adjudicate the
veteran's claims.
The Board also notes that the veteran has suggested that VA
failed to obtain his complete private medical records from
1962 to approximately 1988 from the A.T. & S.F. Hospital
Association and Memorial Hospital. The Board observes,
however, that multiple copies of the referenced medical
records are in fact on file, and there is no indication that
the available private medical records are incomplete. In any
event the Board notes that the MROC has contacted all
relevant sources identified by the veteran in order to obtain
any additional private medical records for the pertinent
period.
The Board notes that the veteran has received VA treatment
for several of his claimed disabilities since the June 1995
Board remand, and that the MROC has not secured many of these
records. However, as any such records would show evaluation
of the veteran's claimed disabilities several years after
service and the veteran has not alleged that any records not
on file would provide medical evidence of an etiological link
between any of his current disabilities and service, the
Board concludes that a remand of this case for the purpose of
obtaining these records is not warranted.
The Board additionally notes that the veteran is in receipt
of disability retirement benefits from the U.S. Railroad
Retirement Board (RRB), as of April 1992. The record
reflects that the MROC attempted without success to secure
records associated with the RRB's decision in June 1994. The
Board notes, however, that the veteran has indicated that
RRB's decision was based solely on VA records which are on
file. Since there is no indication that the RRB maintains
any pertinent records for the veteran which are not already
on file, and since it is clear from numerous statements by
the veteran that he would prefer a decision on his claims at
this time, the Board concludes that remand of the case in
order to secure any records from the RRB is not warranted.
The Board lastly notes that although this case was remanded
to the MROC in June 1995 partly for the purpose of obtaining
verification from the service department of the nature and
dates of the veteran's service in the National Guard, the
MROC failed to comply with the Board's remand directive.
However, as it is evident from the veteran's statements that
he would prefer that the Board not remand the case again for
the purpose of verifying the nature and dates of his service,
the Board will assume for the purpose of this decision that
the veteran's service was inactive duty training in March
1980 with respect to his claim for service connection for
residuals of a right hand injury, and active duty for
training in March 1986 for the purpose of the claim for
entitlement to service connection for headaches.
I. Entitlement to a compensable rating for kidney stones;
entitlement to service connection for the residuals of a
right hand injury; entitlement to service connection for
headache disability
Initially, the Board notes that the veteran's claims are well
grounded within the meaning of 38 U.S.C.A. § 5107(a).
Further, the Board is satisfied that all relevant facts have
been properly developed and that no further assistance to the
veteran is required to comply with 38 U.S.C.A. § 5107(a).
A. Entitlement to a compensable rating for kidney stones
In accordance with 38 C.F.R. §§ 4.1 and 4.2 (1998) and
Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has
reviewed all evidence of record pertaining to the history of
the service-connected kidney stones. The Board has found
nothing in the historical record which would lead to the
conclusion that the current evidence of record is not
adequate for rating purposes. Moreover, the Board is of the
opinion that this case presents no evidentiary considerations
which would warrant an exposition of remote clinical
histories and findings pertaining to this disability.
Disability ratings are determined by applying the criteria
set forth in the VA Schedule for Rating Disabilities (Rating
Schedule), found in 38 C.F.R. Part 4 (1998). The Board
attempts to determine the extent to which the veteran's
service-connected disability adversely affects his ability to
function under the ordinary conditions of daily life, and the
assigned rating is based, as far as practicable, upon the
average impairment of earning capacity in civil occupations.
38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (1998).
Where there is a question as to which of two evaluations
should be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7 (1998). In every instance
where the schedule does not provide a zero percent evaluation
for a diagnostic code, a zero percent evaluation shall be
assigned when the requirements for a compensable evaluation
are not met. 38 C.F.R. § 4.31 (1998).
Briefly, as was noted in the Introduction, the veteran's
service ended in May 1962. In May 1990, the veteran was
granted service connection for kidney stones, evaluated as
noncompensably disabling. This evaluation has remained in
effect since that time.
On file are private and VA medical records for October 1962
to April 1997 which show that the veteran was treated for
renal colic in October 1962, at which time intravenous
pyelogram (IVP) demonstrated minimal blunting of the calyces
on the right and slight dilatation of the ureter compatible
with passage of a stone; no further evidence of a stone was
identified. Laboratory testing was positive for albumin.
The veteran was discharged in good condition with no
complications. An October 1965 treatment note indicates that
the veteran denied a history of renal infection. The veteran
was again treated for right renal colic in August 1975, at
which time kidney ultrasound biopsy (KUB) showed a
radiodensity causing partial obstruction of the collecting
system. The veteran's blood chemistry profile was normal.
The veteran passed the stone and was discharged in good
condition. An IVP performed in January 1976 showed that the
veteran's kidneys were normal in size, shape and position.
The veteran again presented in May 1978 for renal colic,
during which time he spontaneously passed a right ureteral
calculus. An IVP was normal except for possible minimal
obstruction secondary to edema from a passed calculus. The
veteran's blood urea nitrogen (BUN) level was 7.4% mg/dl, but
his blood chemistry was otherwise normal. He was thereafter
hospitalized in July 1990 for possible renal colic at which
time urinalysis and KUB were considered unremarkable, without
evidence of a hydronephrotic pattern. The veteran was
nevertheless unable to void and was catheterized to drain his
urine. He was discharged with a diagnosis of recent history
of stones. An IVP and KUB in September 1990 showed that his
right kidney was slightly higher than his left kidney, but
were negative for evidence of opaque stones.
Other than the episodes described above, the treatment
reports are negative for evidence of the recurrence of kidney
stones and are entirely negative for treatment of kidney
infections. The records show that the veteran underwent
cystoscopy, IVPs and catheterizations on several other
occasions related to his prostate and bladder disabilities,
including recurrent urinary tract infections, but unrelated
to treatment for kidney stone disease. The reports show that
the veteran was placed on several diets for the control of
his weight, cholesterol, and diabetes, and was prescribed
numerous medications primarily for his headache disability,
hypertension and urinary tract infections, but are negative
for any reference to diet or drug therapy associated with his
kidney stone disease. The records also show occasional
treatment for ankle edema. The veteran's BUN levels ranged
from 9% to 20% mg/dl, considered by laboratory reports to be
within the range of normal, with no more than 3 occasions in
which the BUN levels were slightly below the range of normal,
and only two occasions in which the level was abnormally high
(both less than 27% mg/dl). His creatinine levels ranged
from .9% to 1.3% mg/dl, considered by laboratory reports to
be within the range of normal, and his albumin levels were
normal with the exception of two occasions in which the
levels were abnormally low. The veteran's protein levels
were within normal limits except on one occasion, and
urinalysis was consistently negative for any casts.
Diastolic blood pressure readings for the period between 1988
and 1997 were predominantly below 100 and systolic blood
pressure readings for the same period were predominantly
below 160.
On file is the report of a July 1996 VA fee basis examination
at which time the veteran reported nocturia and voiding with
an intermittent spraying stream. He also reported gross
hematuria in the prior year. Physical examination disclosed
mild tenderness to percussion over both costovertebral
angles. His abdomen was pendulous and nontender without any
mass. Urinalysis showed the presence of proteinuria without
significant hematuria or pyuria. The examiner recommended
that the veteran undergo several additional procedures.
Of record is a VA medical report for April 1997 which
indicates that the veteran was afforded renal sonograms in
August 1996 and November 1996 which were purportedly negative
for evidence of kidney stones or hydronephrosis. A KUB in
August 1996 purportedly showed no current evidence of stones
and urinalysis in September 1996 was described as negative.
A cystoscopy in November 1996 purportedly showed only minimal
residual urine, although the veteran's prostate was
apparently obstructed by a high-median bar and bilobar
hypertrophy bilaterally. Bilateral retrograde pyelogram in
November 1996 was purportedly normal, with no evidence of
kidney stone disease or ureteral obstruction by stones.
After reviewing the medical evidence on file, the VA
physician concluded that the veteran's kidney stone disease
had not recurred since at least 1993. He further opined, in
essence, that the veteran's kidney stone disease was not
related to his urinary dysfunction or prostate disability.
The physician diagnosed the veteran with recurrent renal
calculi, not found.
Analysis
Effective February 17, 1994, the criteria governing the
rating of disabilities of the genitourinary system changed,
including the criteria governing the rating of
nephrolithiasis. See 59 Fed. Reg. 2523, as amended at 59
Fed. Reg. 14566, 46338 (1994). In Karnas v. Derwinski,
1 Vet. App. 308, 312-13 (1991), the United States Court of
Appeals for Veterans Claims (known as the United States Court
of Veterans Appeals before March 1, 1999, hereinafter Court)
held that where the law or regulation changes after a claim
has been filed or reopened but before the administrative or
judicial appeal process has been concluded, the version most
favorable to the appellant applies unless Congress provided
otherwise or permitted the Secretary of Veterans Affairs to
do otherwise and the Secretary did so.
In the present case, the Board notes that the MROC evaluated
the veteran's claim under the previous regulations in making
its decision of May 1990. The December 1990 Statement of the
Case and the March 1991, April 1993 and May 1994 Supplemental
Statements of the Case referred to the regulations then in
effect. While subsequent November 1994, May 1997 and June
1997 Supplemental Statements of the Case did not specifically
refer to the new schedular criteria, they nevertheless
concluded that the veteran's kidney stones remained
noncompensably disabling. In the Board's opinion, since the
MROC arguably applied the new schedular criteria, and in any
event was presented numerous opportunities to apply the new
schedular criteria, there is no prejudice to the veteran
under Bernard v. Brown, 4 Vet. App. 384 (1993). In light of
Karnas, the Board will proceed to analyze the veteran's
increased rating claim under both sets of criteria to
determine if one is more favorable to the veteran.
i. Previous rating criteria
The veteran's nephrolithiasis is rated under 38 C.F.R.
§ 4.115a, Diagnostic Code 7508. Under that code,
nephrolithiasis will be rated as hydronephrosis (calculus in
kidney required; staghorn or multiple stones filling pelvis
of kidney, to be rated as 30 percent disabling). 38 C.F.R.
§ 4.115a, Diagnostic Code 7508. A 10 percent evaluation is
warranted for mild hydronephrosis, with only an occasional
attack of colic, not infected and not requiring catheter
drainage. A 20 percent evaluation is warranted for moderate
hydronephrosis, with frequent attacks of colic, requiring
catheter drainage. A 30 percent rating is warranted for
moderately severe hydronephrosis, with frequent attacks of
colic with infection (pyonephrosis), kidney function greatly
impaired. 38 C.F.R. § 4.115a, Diagnostic Code 7509.
The medical evidence demonstrates that the veteran has
experienced renal colic several times since 1962, most
recently in 1990 and possibly in 1993. While the veteran
contends that his attacks of colic invariably require
catheter drainage, the record discloses only one occasion in
which such a procedure was required in connection with the
veteran's service-connected disability. Moreover, while the
veteran contends that his urinary tract infections are
related to his kidney stones, the April 1997 VA physician
essentially concluded that the veteran's recurring infections
are unrelated to his kidney stone disease, and the record is
negative for any evidence of pyonephrosis. In the Board's
opinion, the medical evidence demonstrates that the veteran
experiences only occasional attacks of colic, without
infection or the need for catheter drainage, warranting a 10
percent evaluation. However, the Board concludes that a
rating in excess of 10 percent is not warranted.
In this regard the record reflects that the veteran has
experienced renal colic less than six times in more than 35
years, with no episodes occurring at least since 1993.
Moreover, IVPs and KUBs since 1962 have never demonstrated
the presence of more than one stone during an attack of renal
colic, and have demonstrated the absence of any stones in
between the veteran's episodes. Moreover, there is no
medical evidence of pyonephrosis or of any impairment of
kidney function. The Board therefore concludes that there is
no basis for assignment of an evaluation in excess of 10
percent for kidney stones.
Accordingly, a 10 percent evaluation is warranted for kidney
stones. 38 U.S.C.A. § 5107 (West 1991).
ii. New rating criteria
As noted previously, effective February 17, 1994, VA revised
the criteria for diagnosing and evaluating genitourinary
disabilities. 59 Fed. Reg. 2523 (1994). The new rating
criteria for nephrolithiasis are found at 38 C.F.R. § 4.115b,
Diagnostic Code 7508 (1998). Under that code,
nephrolithiasis will be rated as hydronephrosis, except if
there is recurrent stone formation requiring diet therapy,
drug therapy and/or invasive or non-invasive procedures more
than two times per year, in which case a 30 percent rating is
warranted. 38 C.F.R. § 4.115b, Diagnostic Code 7508. A 10
percent evaluation is warranted for hydronephrosis with only
an occasional attack of colic, not infected, and not
requiring catheter drainage. A 20 percent evaluation is
warranted for frequent attacks of colic, requiring catheter
drainage. A 30 percent rating is warranted for frequent
attacks of colic with infection (pyonephrosis), kidney
function impaired. 38 C.F.R. § 4.115b, Diagnostic Code 7509.
The next highest disability evaluation requires severe
symptomatology, which is rated as renal dysfunction under
38 C.F.R. § 4.115a (1998). This regulation provides that a
30 percent rating is warranted for albumin constant or
recurring with hyaline and granular casts or red blood cells;
or, transient or slight edema or hypertension at least 10
percent disabling (diastolic pressure predominantly 100 or
more, or systolic pressure predominantly 160 or more).
38 C.F.R. §4.115a.
Although the evidence shows that the veteran experiences
occasional attacks of colic without infection or the need for
catheter drainage, the Board notes that the veteran's
disability does not reflect any of the criteria for a higher
rating under the new criteria such as diet or drug therapy in
connection with recurrent stone formation. Moreover, as the
veteran has experienced no more than 6 attacks of renal colic
in more than 35 years, there is no evidence that he has
required invasive or noninvasive procedures more than twice
each year for recurrent stone formation. While the veteran
experiences recurrent urinary tract infections, as noted
previously the only medical opinion on file addressing the
relationship of those infections to the veteran's kidney
stone disease is clearly unsupportive of the veteran's claim,
and there is no evidence that his kidney stones have resulted
in pyonephrosis. Moreover, there is no evidence of
impairment of kidney function or of kidney edema on other
than one occasion. In this regard the Board notes that
despite the presence of albumin in October 1962, there is no
medical evidence of constant albuminuria or a definite
decrease in kidney function. Moreover, the veteran's BUN and
creatinine levels have largely been within normal limits, and
urinalyses have consistently been negative for evidence of
casts. The Board notes that although the veteran does have
hypertension, service connection is not in effect for this
disorder. In any event, the evidence shows that the
veteran's diastolic blood pressure readings since 1988 have
been predominantly less than 100, and his systolic blood
pressure readings less than 160; hypertension that is at
least 10 percent disabling for rating purposes requires
diastolic pressure that is predominantly 100 or more or
systolic pressure that is predominantly 160 or more. See
38 C.F.R. § 4.104, Diagnostic Code 7101 (1998).
The Board therefore concludes that there is no basis for
assignment of an evaluation in excess of 10 percent for
kidney stones.
iii. Extra-schedular rating
The Board has also considered whether the case should be
referred to the Director of the Compensation and Pension
Service for extra-schedular consideration under 38 C.F.R. §
3.321(b)(1) (1998). However, the current evidence of record
does not reflect frequent periods of hospitalization because
of the service-connected kidney disability, or indicate that
the manifestations of the disability are unusual or
exceptional. Rather, the evidence shows that the
manifestations of the disability are those contemplated by
the schedular criteria. In sum, there is no indication in
the record that the average industrial impairment resulting
from the disability would be in excess of that contemplated
by the assigned evaluations. Accordingly, in the absence of
such factors, the Board finds that the criteria for
submission for assignment of an extra-schedular rating
pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See
Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Shipwash v.
Brown, 8 Vet. App. 218, 227 (1995).
B. Residuals of a right hand injury
Service connection may be granted for disability resulting
from injury incurred or aggravated during a period of
inactive duty training. 38 U.S.C.A. §§ 101(24), 106, 1110,
1131 (West 1991); 38 C.F.R. §§ 3.6, 3.303 (1998).
Service medical records show that in March 1980, while on
inactive duty training, the veteran sustained a smashing
injury to the fingers of his right hand, with resulting
lacerations of the fingers and an abrasion of the right third
digit. A March 1980 statement by L.S. indicates that the
veteran had been loading supplies into a truck when the
veteran caught the fingers of his right hand in the
electrically operated tail gate. The records indicate that
the veteran thereafter sought no further treatment associated
with his right hand injury.
Private and VA medical records for 1980 to April 1997 are
negative for any complaints, finding or diagnosis pertaining
to the residuals of a right hand injury.
The veteran was afforded a VA examination in May 1996, at
which time he complained of aching and numbness of the
metacarpophalangeal joint of the right index finger; he
informed the examiner that the digit had been injured by a
hydraulic lift while on duty in the National Guard and he
denied any history of subsequent injury to the hand. The
veteran was noted to be left handed, and physical examination
of the right hand disclosed the presence of a well healed
laceration scar over the dorsum of the second
metacarpophalangeal joint and proximal segment of the index
finger; the examination was otherwise normal, with no
evidence of deformity, swelling or limitation of motion. The
examiner concluded that the veteran's service injury did not
result in any impairment of the hand.
Service records show that the veteran sustained lacerations
and abrasions to the fingers of his right hand during a
period of inactive duty training and postservice medical
evidence demonstrates the presence of residual scarring of
his right second digit. Accordingly, service connection is
warranted for a scar of the right index finger. 38 U.S.C.A.
§ 5107.
C. Headache disability
Service connection may be granted for disability resulting
from disease or injury incurred or aggravated during active
service or active duty for training. 38 U.S.C.A. §§ 101(24),
106, 1110, 1131 (West 1991); 38 C.F.R. §§ 3.6, 3.303 (1998).
In several statements on file the veteran contends, in
essence, that he first developed his headache disability
during basic training in 1957. He also contends that his
headache disability was aggravated in May 1986 while on duty
with the National Guard.
As noted previously, service medical records for the
veteran's period of active service are not on file. At his
June 1973 National Guard enlistment examination and on an
April 1974 periodic examination the veteran denied any
frequent or severe headaches. A May 1986 hospital report
from Fort Riley, Kansas, indicates that the veteran presented
that month with complaints of dizziness, nausea and headaches
after drinking water. The veteran was provided with
medications, to which he responded well, and his pain
resolved; he was diagnosed with migraine headaches and
returned to full duty. On National Guard examination in
August 1989 the veteran reported a 30-year history of
migraine and tension headaches; he was diagnosed with
migraine cephalgias.
Private medical reports for October 1962 to June 1994 are
negative for any complaints, finding or diagnosis of
headaches until 1976, at which time the veteran was noted to
have received recent treatment for headaches of recent onset.
The remainder of the private medical reports document
treatment of primarily migrainous headaches, but do not
address the etiology of the veteran's disability other than
to record his assertion that his headaches began in
approximately 1964.
On file are VA treatment records for November 1988 to April
1997, which document extensive treatment for the veteran's
primarily migrainous headaches. The veteran reported to his
physicians that his headaches began in 1957 during basic
training, and the veteran was thereafter diagnosed on
repeated occasions with history of migraine headaches since
1957; the treatment records did not otherwise address the
etiology of his disability.
Although the veteran maintains that his headache disability
originated in service or was aggravated by his period of
active duty for training in May 1986, the preponderance of
the evidence is against his claim. In this regard the Board
notes that there is no medical evidence of headache
disability until 1976, and indeed the veteran denied
experiencing severe headaches in June 1973 and April 1974
when afforded physical examinations for service in the
National Guard. Moreover, the record reflects that the
veteran first informed his physicians that his headaches
began in service only after filing the instant claim with VA.
Under the circumstances, the Board concludes that the
veteran's statements regarding the onset of his headache
disability are not credible in light of contemporary medical
records, including physical examinations for the military,
which are negative for any complaints, finding or diagnosis
of headaches for many years after service.
Although multiple VA treatment reports diagnosed the veteran
with a history of migraine headaches since 1957, these
diagnoses were necessarily based on history supplied by the
veteran which, as noted above, is not considered credible.
Moreover, the Board notes that the treatment reports do not
otherwise address the etiology of the veteran's disability or
discuss the absence of any medical evidence of headaches
prior to 1976. In essence, the medical opinions supporting
the veteran's claim are only minimally supportive. They
clearly provide no basis for concluding that it is at least
as likely as not that his headache disability was incurred or
aggravated by service. Moreover, although the veteran
contends that his headache disability was chronically
aggravated by his period of active duty for training in May
1986, treatment notes show that his headaches at that time
resolved with medication, and he has not submitted any
medical evidence that is supportive of his contention. See
Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (layperson not
competent to offer medical opinions). The Board therefore
finds that application of the evidentiary equipoise rule,
which mandates that where the evidence is balanced and a
reasonable doubt exists as to a material issue, the benefit
of the doubt shall be given to the claimant, is not required
in this case. See 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R.
§ 3.102 (1998); Gilbert v. Derwinski, 1 Vet. App. 49, 54
(1990). 38 U.S.C.A. § 5107.
The Board notes that the veteran has not been afforded a VA
examination with respect to his headache disability.
However, as any conclusion regarding the etiology of the
veteran's headaches reached by an examiner would necessarily
rely on history supplied by the veteran, and as the veteran's
statements regarding his history are not considered credible
in light of the absence of medical evidence of headaches for
many years after service, the Board finds that remand of the
case for the purpose of affording the veteran an examination
is not warranted.
The Board also notes that the veteran has received VA
treatment for his headaches since the June 1995 Board remand,
but that the MROC has not obtained all records associated
with the recent treatment. However, any such records would
show treatment of the veteran's headache disability many
years after service, the veteran has not alleged that the
records would provide medical evidence of an etiological link
between his current headaches and service, and in any event,
any opinion in the treatment reports which does link the
veteran's headaches to service would necessarily be based on
history supplied by the veteran, which the Board has found to
lack significant probative value. Therefore, the Board
concludes that a remand of this case for the purpose of
obtaining the recent VA records is not warranted.
II. Entitlement to service connection for hearing loss,
residuals of a ruptured penile blood vessel, to include
sexual dysfunction, disability manifested by joint pains,
disability manifested by muscle spasms, residuals of the flu,
eye disability, throat disability, cardiovascular disability,
to include hypertension, varicose vein disability, prostate
disability, psychiatric disability, diabetes, bladder
disability and dental disability.
Applicable law provides that service connection may be
granted for disability resulting from disease or injury
incurred or aggravated during active service. 38 U.S.C.A. §
1131 (West 1991); 38 C.F.R. § 3.303 (1998). Service
incurrence of arthritis, cardiovascular disease (including
hypertension), diabetes mellitus, epilepsies, organic
diseases of the nervous system and psychoses during peacetime
service after December 31, 1946, may be presumed if
manifested to a compensable degree within one year of the
veteran's discharge from service. 38 U.S.C.A. §§ 1101, 1137
(West 1991); 38 C.F.R. §§ 3.307, 3.309 (1998). However, as a
preliminary matter, the Board must determine whether the
veteran has submitted evidence of well-grounded claims.
38 U.S.C.A. § 5107(a). If he has not, his claims must fail,
and VA is not obligated to assist the veteran in their
development. 38 U.S.C.A. § 5107(a); Grottveit v. Brown, 5
Vet. App. 91 (1993); Tirpak v. Derwinski, 2 Vet. App. 609
(1992).
The Court has stated repeatedly that 38 U.S.C.A. § 5107(a)
unequivocally places an initial burden on a claimant to
produce evidence that a claim is well grounded. See Grivois
v. Brown, 6 Vet. App. 136 (1994); Grottveit at 92; Tirpak at
610-11. A well-grounded claim is a plausible claim, that is,
a claim which is meritorious on its own or capable of
substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81
(1990). The Court has stated that the quality and quantity
of evidence required to meet this statutory burden depends
upon the issue presented by the claim. Grottveit at 92-93.
Where a determinative issue involves medical causation or a
medical diagnosis, competent medical evidence to the effect
that the claim is plausible or possible is required. Id.
Further, in order for a claim to be considered plausible, and
therefore well grounded, there must be evidence of both a
current disability and evidence of relationship between that
disability and an injury or disease incurred in service or
some other manifestation of the disability during service.
Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer
v. Derwinski, 3 Vet. App. 223, 225 (1992); Cuevas v.
Principi, 3 Vet. App. 542, 548 (1992).
A claim will also be well grounded if the condition is
observed during service or any applicable presumption period,
continuity of symptomatology is demonstrated thereafter, and
competent evidence relates the present condition to that
symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997).
A. Hearing loss
The Board initially notes that during the pendency of this
appeal, 38 C.F.R. § 3.385, pertaining to the definition of
hearing loss disability for VA compensation purposes, was
enacted, effective April 3, 1990. The enacted regulation is
less favorable to the veteran's claim because his claim for
service connection for hearing loss would lack legal merit
under its provisions. However, since the veteran's claim was
filed prior to April 3, 1990, it will be decided under the
law as it existed prior to the promulgation of 38 C.F.R.
§ 3.385. See Karnas v. Derwinski, 1 Vet. App. 308, 312-13
(1991).
Service medical records for the veteran's period of active
duty are not on file. At his June 1973 National Guard
enlistment examination the veteran denied any complaints of
hearing loss. Audiometric testing at that time revealed pure
tone thresholds, in decibels, to be as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
20
15
10
10
10
LEFT
15
15
15
10
10
On periodic examination in April 1974, the veteran again
denied any complaints of hearing loss. He indicated that he
worked as a communications specialist with exposure to
equipment noise. On audiometric testing, pure tone
thresholds, in decibels, were noted to be as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
20
10
5
5
20
LEFT
15
20
20
15
15
The examiner described the veteran's hearing as good, and
while ear plugs were not issued for the veteran, the examiner
considered existing ear protection to be adequate.
On National Guard examination in August 1989 the veteran
reported slight hearing loss. On audiometric testing, pure
tone thresholds, in decibels, were noted to be as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
10
20
20
15
15
LEFT
10
15
20
20
15
No diagnosis of hearing loss was rendered.
Private and VA medical records for October 1962 to April 1997
are entirely negative for evidence of hearing loss.
The record contains no medical evidence of a diagnosis of
hearing loss, and in any event there is no medical evidence
linking any hearing loss to the veteran's period of service.
The only evidence supportive of either a diagnosis of hearing
loss or of a link between any hearing loss and service
consists of the assertions of the veteran himself. However,
as a lay person, the veteran is not qualified to furnish
medical opinions or diagnoses. See Espiritu v. Derwinski, 2
Vet. App. 492, 494 (1992). Moreover, while the veteran is
competent to testify as to his symptoms during and after
service, he is not competent to relate his present condition
to those symptoms. See Savage, 10 Vet. App. 488 (1997). In
light of these circumstances, the Board must conclude that
the veteran's claim is not well grounded.
B. Entitlement to service connection for residuals of a
ruptured penile blood vessel, to include sexual dysfunction,
disability manifested by joint pains, disability manifested
by muscle spasms, residuals of the flu, eye disability,
throat disability, cardiovascular disability, to include
hypertension, varicose vein disability, prostate disability,
psychiatric disability and diabetes
As noted previously, the veteran's service medical records
are not on file. The record contains no medical evidence of
a diagnosis of sexual dysfunction or varicose veins.
Moreover, there is no medical evidence of complaints,
treatment, or diagnosis of the veteran's other disabilities
for several years after service and no medical evidence
linking any of the veteran's claimed disabilities to service.
The only evidence supportive of either a diagnosis of sexual
dysfunction or varicose vein disability or of a link between
any of the veteran's claimed disabilities and his period of
service consists of the assertions of the veteran himself.
However, as a lay person, the veteran is not qualified to
furnish medical opinions or diagnoses. See Espiritu v.
Derwinski, 2 Vet. App. 492, 494 (1992). Moreover, while the
veteran is competent to testify as to his symptoms during and
after service, he is not competent to relate his present
condition to those symptoms. See Savage, 10 Vet. App. 488
(1997). In light of these circumstances, the Board must
conclude that the veteran's claims are not well grounded.
C. Bladder disability
On file are private and VA treatment records for October 1962
to April 1997 which show that the veteran was treated in
October 1962 for renal colic, at which time intravenous
pyelogram showed slight dilatation of the ureter on the right
compatible with passage of a stone, but with no evidence of
bladder retention. The records are negative for any
complaint, abnormal finding or diagnosis associated with the
bladder until 1969, at which time the veteran reported
urinary frequency and urgency of recent onset. The records
thereafter show treatment for occasional complaints of
urinary frequency, burning and decreased stream associated
with prostatitis, recurrent urinary tract infections and the
presence of a median bar formation at the bladder neck.
The veteran's June 1973 National Guard enlistment examination
and April 1974 periodic examination are negative for any
reference to bladder disability. At his August 1989 National
Guard examination the veteran reported experiencing recurrent
bladder infections and was diagnosed with recurrent urinary
tract infections.
On VA examinations in July 1996 and April 1997 the veteran
continued to complain of recurrent lower urinary tract
infections; the examiners did not address the etiology of any
bladder disability.
The record contains no medical evidence of bladder disability
for several years after service and there is no medical
evidence linking the veteran's bladder disability to service.
The only evidence supportive of a link between the veteran's
bladder disability and his period of service consists of the
assertions of the veteran himself. However, as a lay person,
the veteran is not qualified to furnish medical opinions or
diagnoses. See Espiritu v. Derwinski, 2 Vet. App. 492, 494
(1992). Moreover, while the veteran is competent to testify
as to his symptoms during and after service, he is not
competent to relate his present condition to those symptoms.
See Savage, 10 Vet. App. 488 (1997). In light of these
circumstances, the Board must conclude that the veteran's
claim is not well grounded.
D. Dental disability.
In several statements on file the veteran contends, in
essence, that he sustained dental disability in service as a
result of surgery in which the dentist cut into his jaw bone
and pried out his teeth.
On file are private and VA medical records for October 1962
to April 1997 which are negative for any reference to the
veteran's teeth until December 1982, at which time his teeth
were described as in good repair. The veteran thereafter
reported the presence of mal occlusion with a
temporomandibular joint problem, and the records indicate
that the veteran wore dental braces and a prosthesis in
connection with treatment for his headaches. The reports
indicate that the veteran was treated in 1992 for leukoplakia
and significant bone loss around teeth numbers 8 and 9, and
that those teeth were thereafter extracted.
The veteran's June 1973 National Guard enlistment examination
indicates that he was missing teeth numbers 1, 17, 19, 31 and
32, but are negative for any reference to the veteran's
period of active service. On periodic examination in April
1974, the veteran was missing tooth number 30 as well, and at
his August 1989 examination was missing tooth number 16.
Although the veteran contends that he experienced dental
trauma in service, the record contains no medical evidence of
dental disability until many years after service and there is
no medical evidence linking any dental disability to his
period of service. The only evidence supportive of a link
between any dental disability and the veteran's period of
service consists of the assertions of the veteran himself.
As noted previously, a lay person such as the veteran is not
qualified to furnish medical opinions or diagnoses. See
Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).
Moreover, while the veteran is competent to testify as to his
symptoms during and after service, he is not competent to
relate his present condition to those symptoms. See Savage,
10 Vet. App. 488 (1997). In light of these circumstances,
the Board must conclude that the veteran's claim is not well
grounded.
The Board notes that the veteran, in May 1997, alleged
treatment by two dentists in the late 1970s; he alleged that
records from those dentists would show the dental damage
wrought in service. Although the MROC has not attempted to
secure records from the named dentists, the Board notes that
the veteran's dental condition was recorded on his June 1973
and April 1974 National Guard examinations, and that the
veteran has not alleged that the missing private dental
records would provide medical evidence linking his dental
disability to service. As it is clear from numerous
statements on file that the veteran would appreciate a
decision on his claim now, and since the veteran's claim for
a dental disability, in any event, is not well grounded, the
Board concludes that a remand of the case for the purpose of
obtaining any records from the named dentists is not
warranted.
E. Miscellaneous
Although the Board has considered and denied these claims on
a ground different from that of the MROC, that is, whether
the appellant's claims are well grounded rather than whether
he is entitled to prevail on the merits, the appellant has
not been prejudiced by the Board's decision. In assuming
that the claims were well grounded, the MROC accorded the
appellant greater consideration than his claims warranted
under the circumstances. Bernard v. Brown, 4 Vet. App. 384,
392-94 (1993). To remand this case to the MROC for
consideration of the issue of whether the appellant's claims
are well grounded would be pointless, and in light of the law
cited above, would not result in a determination favorable to
the appellant. VAOPGCPREC 16-92 (O.G.C. Prec. 16-92).
The Board views its foregoing discussion as sufficient to
inform the veteran of the elements necessary to complete his
application to reopen his claims for service connection for
the disabilities discussed above. Graves v. Brown, 8 Vet.
App. 522, 524 (1996).
III. Entitlement to a total rating based on unemployability
due to service-connected disabilities
The Board initially notes that the Board's June 1995 remand
requested that the MROC adjudicate the veteran's raised
claims of entitlement to service connection on a secondary
basis for bladder and prostate disabilities. While the MROC
did not thereafter adjudicate the raised claims, the Board
points out that an April 1997 VA medical report concluded
that his bladder and prostate disabilities were not related
to his kidney stones. The Board will therefore proceed to
adjudicate the veteran's claim for entitlement to a total
rating based on unemployability due to service-connected
disabilities.
A total disability rating may be assigned where the schedular
rating is less than total, and when the veteran is unable to
secure or follow a substantially gainful occupation as a
result of service-connected disability, provided, however,
that if there is only one such disability, it must be rated
at 60 percent or more, and that, if there are two or more
disabilities, there shall be at least one disability ratable
at 40 percent or more, and sufficient additional disability
to bring the combined rating to 70 percent or more.
38 C.F.R. § 4.16 (1998).
The veteran's only service-connected disabilities consist of
his kidney stones, rated as 10 percent disabling, and a scar
of the right index finger, which has not been assigned an
evaluation. The Board notes, however, that VA's Schedule for
Rating Disabilities does not provide for a schedular rating
of 40 percent or more for the veteran's scar. See 38 C.F.R.
§§ 4.71a, Diagnostic Codes 5153, 5225, 4.118, Diagnostic
Codes 7803-7805 (1998). Moreover, in light of the absence of
any residual impairment on examination or evidence showing
that the veteran's right index finger scar has necessitated
frequent periods of hospitalization, or that there exist any
other unusual or exceptional disability factors which would
render impractible the application of the regular schedular
standards, the Board concludes that it is not required to
remand this matter to the MROC for the procedural actions
outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9
Vet. pp. 237 (1996); Shipwash v. Brown, 8 Vet. pp. 218, 227
(1995). As the veteran could not therefore meet the minimum
schedular requirements for a total rating based on
unemployability, the Board must conclude that a total
disability rating is not warranted.
Even if the required percentage standards described above
were met, the veteran would not be entitled to a total rating
based on unemployability. In this regard the Board notes
that a review of the evidence indicates that the veteran has
a high school education, and has extensive experience as an
accounting clerk. While the record reflects that he retired
due to disability effective April 1992, the medical evidence
on file shows only a handful of instances, none since at
least 1993, in which he was treated for his service-connected
disabilities; the records instead show extensive treatment
for a variety of nonservice-connected maladies, particularly
his migrainous headaches and cardiovascular disease, which
significantly impacted his ability to obtain or maintain
employment; none of the medical evidence suggests that the
veteran's service-connected disabilities rendered him
unemployable or precipitated his retirement. Upon review of
the entire record, then, the Board concludes that the
preponderance of the evidence establishes that the veteran's
service-connected kidney stones and right index finger scar
are not sufficient by themselves to render the veteran unable
to secure and follow any form of substantially gainful
employment consistent with his education and industrial
background.
Finally, the Board acknowledges that the veteran is in
receipt of disability retirement benefits from the U.S.
Railroad Retirement Board, effective April 1992; the award
letter does not identify the disabilities on which the RRB's
determination was based. However, as noted previously, RRB's
decision was apparently based solely on VA records which show
no evidence of recurring kidney stones since at least 1993,
evidence of any significant residual disability associated
with the veteran's kidney stones, or evidence of disability
associated with the scar of the veteran's right index finger,
but which instead are replete with evidence of treatment for
several serious nonservice-connected disabilities which have
significantly impacted his ability to obtain or maintain
employment. The Board notes that it is not bound by the
statutes and regulations which govern the disposition of
disability claims pending before the RRB, but rather must
follow the statutes and regulations governing entitlement to
a total rating based on unemployability due to service-
connected disabilities for VA purposes. In any event,
neither the RRB decision nor the records upon which the
decision was based support the veteran's claim.
ORDER
Subject to the controlling regulations applicable to the
payment of monetary benefits, a 10 percent rating for kidney
stones is granted.
Entitlement to service connection for a scar of the right
index finger is granted.
Entitlement to service connection for headache disability is
denied.
Entitlement to service connection for hearing loss is denied.
Entitlement to service connection for residuals of a ruptured
penile blood vessel, to include sexual dysfunction, is
denied.
Entitlement to service connection for disability manifested
by joint pain is denied.
Entitlement to service connection for disability manifested
by muscle spasms is denied.
Entitlement to service connection for residuals of the flu is
denied.
Entitlement to service connection for eye disability is
denied.
Entitlement to service connection for throat disability is
denied.
Entitlement to service connection for cardiovascular
disability, to include hypertension, is denied.
Entitlement to service connection for varicose vein
disability is denied.
Entitlement to service connection for prostate disability is
denied.
Entitlement to service connection for psychiatric disability
is denied.
Entitlement to service connection for diabetes is denied.
Entitlement to service connection for bladder disability is
denied.
Entitlement to service connection for dental disability is
denied.
Entitlement to a total rating based on unemployability due to
service-connected disabilities is denied.
SHANE A. DURKIN
Member, Board of Veterans' Appeals